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en-usTechdirt. Stories filed under "non-disparagement clause"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 29 Oct 2015 06:19:00 PDTFertility Company Bullies Unhappy Customer With Bogus Legal Threats And Nonexistent LawyersTim Cushinghttps://www.techdirt.com/articles/20151027/03140132643/fertility-company-bullies-unhappy-customer-with-bogus-legal-threats-nonexistent-lawyers.shtml
https://www.techdirt.com/articles/20151027/03140132643/fertility-company-bullies-unhappy-customer-with-bogus-legal-threats-nonexistent-lawyers.shtml
It looks like another company wants to ruin its reputation by "protecting" its reputation. Paul Alan Levy of Public Citizen is helping an unhappy customer fight back against the litigious threats of Fertility Bridges, which allegedly promised her one thing, but delivered another.

After searching the Fertility Bridges web site, identifying what appeared to be an ideal donor, and receiving confirmation from Fertility Bridges that the donor had confirmed her willingness to proceed, Oliver wrote a large check to Fertility Bridges. However, as soon as the company had received Oliver’s payment, Fertility Bridges went dark concerning the donor's availability instead of moving forward with an egg donation. Then, just after Oliver’s check had cleared, Fertility Bridges admitted that the donor was unwilling to go forward with the procedure, without giving any reason, and suggested that she choose another of the company's available donors. But when Oliver asked for a refund of the entire fee that she had paid Fertility Bridges, the company temporized for a while, and then refused. In the circumstances, Oliver suspected that she had been the victim of a bait and switch.

Oliver took her complaint to the Better Business Bureau. Shortly thereafter, she received a threatening email (the first of several) from Fertility Bridges stating that the agreement it had failed to uphold on its end had been violated by Oliver's complaint.

"You directly violated our legal agreement by attempting to post an online review. As such, we are setting the plans in motion for a multi-million dollar defamation case against you. . . . unless you withdraw your unwarranted BBB complaint or any illegal online reviews, we will proceed at lightening [sic] speed in a defamation case against you to minimize as much damage as possible. We have your signed legal agreement clearly stating you will NOT post online reviews."

"M. ONLINE REVIEWS "Because of the extremely private and emotionally delicate nature of the egg donation business Recipients agree NOT to post any online reviews anywhere on the Internet without first presenting it to Fertility Bridges for legal review. . . .

"N. APPLICATION OF LAW "Recipients agree that this Agreement will be governed and interpreted by California jurisdiction. . . .

"Q. SETTLEMENT OF DISPUTES "Recipients agree to mediation to resolve any disputes. If mediation does not resolve the issues then Recipients agree to binding arbitration to settle disputes [and] in California Jurisdiction..."

Fertility Bridges' own agreement immediately undercuts its threats of a (baseless) "multi-million dollar defamation case," as it binds both parties to mediation and arbitration. The parts about California's jurisdiction undercut the rest.

[G]iven the (oddly-worded) provision subjecting the agreement to California law, even if the clause were construed as forbidding disparaging reviews without prior approval, the clause would be forbidden by the new California law that prevents companies from imposing non-disparagement clauses in consumer agreements.

The combination of legal errors might cause one to wonder what sort of lawyer helped compose the threatening emails sent to Oliver. Levy tried to speak to Fertility Bridges' legal representation on behalf of Oliver. His attempt was met by Fertility Bridges tugging at its suspenders and claiming it was just a humble, small-time fertility consulting company that didn't much care for big city lawyerin' -- despite its succession of escalating emails suggesting Oliver would be sued into the ground for attempting to badmouth the company.

In fact, for all of its assertions that any review or complaint about its services would first need to be viewed by Fertility Bridges' legal team before publication, the company appears to have no legal representation retained to handle this task. In an email conversation with Levy, the company (comically) makes it clear it would need to retain a specific type of lawyer to handle Oliver's challenge of its non-disparagement clause. [All spelling and grammatical errors in the following are quoted directly. Emphasis added.]

Thanks for your prompt response. If the Olivers feel the need to post something on the Internet, we can't stop them. As you have read we do not have a gag clause, we ask that they present to our attorney or mediator to verify the facts are truthful and void of medical privacy data so that they do not subject themselves to libel.

Do have them post away and we will hire a separate attorney who focuses specifically on false claims (not truthful ones - since those are ok to post and have always been.) As you know different attorneys specialize in different types of the law so we will hire one who specializes in this. We are not lawyers and don't intent to be. Our goal is to create a service that helps and leave the legal matters up to the experts.

We have an attorney who is responding to their NJ claim but we don't feel she has the expertise to advise on libel claim since it will be important to learn the details of libel once we head into mediation with the client.

Will you serve as their lawyer defending them against their lies they are intending to write online? Are you libel attorney?

[...]

If you feel there is anything else we need to know about this case, please pass all and we will share with our with a specialized libel attorney when we hire one. 9 days is too short a time to find and hire This special kind of attorney so we will do this after posts are made and take the right amount of time to find the right one. Once they are made, we will know how extreme the situation is, exactly the nature of their post and we will have a chance to state our response refuting their claims in the public forum they are posting on and what potential damages that might occur as a result. I am sure there is some case law that already defines what the legal remedies are for posting libelous remarks online and we will aim to find an attorney who knows.

I assume once an actual lawyer is retained by Fertility Bridges, all communication along these lines will cease. The non-disparagement clause Fertility Bridges claims isn't a non-disparagement clause is actually unenforceable in California -- the state it's chosen to handle its litigation in. And if Oliver's review actually contains defamatory statements, there are legal remedies the company can pursue that have nothing to do with its shady "run it by our [nonexistent] lawyers first" clause. As Levy points out, given the legal remedies readily available, the only reason to insert language like this into service agreements is to discourage unhappy customers from making their complaints public.

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]]>reputation-still-feeling-protected?https://www.techdirt.com/comment_rss.php?sid=20151027/03140132643Thu, 26 Jun 2014 20:32:55 PDTKlearGear Told To Pay $306,750 For Bogus Attempt To Shakedown Customer For Bad ReviewMike Masnickhttps://www.techdirt.com/articles/20140626/14500427691/kleargear-told-to-pay-306750-bogus-attempt-to-shakedown-customer-bad-review.shtml
https://www.techdirt.com/articles/20140626/14500427691/kleargear-told-to-pay-306750-bogus-attempt-to-shakedown-customer-bad-review.shtmlKleargear for a while now. As you may recall, the company sneakily put a $3,500 "non-disparagement clause" in its online terms of service, saying that you agreed to pay that much if you gave the company a negative review. Jen Palmer left a negative review over some stuff that her husband, John, bought that they never actually got. This happened long before the non-disparagement clause existed. Despite that (and the dubious enforceability of such a clause anyway), Kleargear demanded the $3,500. And when the Palmers rightly refused to pay up, it sent the amount to a collections agency and messed up the Palmers' credit, causing significant hardship for the couple. At this point, Public Citizen stepped in to sue KlearGear. For a while KlearGear played a disappearing game. It didn't respond to Public Citizen's initial letter, then it ignored the lawsuit (and put back the non-disparagement clause on its website after briefly taking it down). Based on that, the Palmers got a default judgment against the company.

Then, suddenly, a "representative" of the company named Vic Mathieu magically appeared spouting all sorts of nonsense and trying to defend everything the company had done. Of course, neither KlearGear nor it's apparently French-based owner Descoteaux Boutiques actually did anything in court, and thus, the court has ordered KlearGear to pay up to the tune of $306,750 in both compensatory and punitive damages.

Of course, collecting on that award may take some work. It's still not entirely clear who is behind Kleargear, statements from Vic Mathieu notwithstanding. It's possible that the company is really owned by this French company, which will make collection difficult for a variety of reasons. Or that whole thing may be a sham in itself, meaning that no one knows who's actually involved at all. Chances are, the Palmers are unlikely to see much money here. Still, what amazes me is that Kleargear itself is still in business. I'm somewhat surprised the company didn't just up and move to a different domain. But, instead, it's still there. One hopes that people doing some shopping do some searches first on the company to find out about its practices.

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]]>but-can-they-collect?https://www.techdirt.com/comment_rss.php?sid=20140626/14500427691Wed, 26 Mar 2014 09:55:00 PDTKlearGear No-Shows Hearing, Reinstates $3,500 Non-Disparagement ClauseTim Cushinghttps://www.techdirt.com/articles/20140324/03123726668/kleargear-no-shows-hearing-reinstates-3500-non-disparagement-clause.shtml
https://www.techdirt.com/articles/20140324/03123726668/kleargear-no-shows-hearing-reinstates-3500-non-disparagement-clause.shtml
KlearGear is getting back into the pay-to-complain business. Despite being forced into hiding after news surfaced that it had (fraudulently) attempted to extract $3,500 from a negative reviewer using a bogus non-disparagement clause hidden in its "Terms of Sale and Use," the company continues to limp along, avoiding taking responsibility for its actions.

The court clerk declared kleargear.com to be in default on March 11, 2014. Eight days later, Michelman proposed a default judgment which reads, "kleargear.com is liable to [jen and her husband] for violating the fair credit reporting act, for defamation, for intentional interference with prospective contractual relations, and for intentional infliction of emotional distress."

Michelman told Get Gephardt Thursday that he expects the judge will sign the motion and order kleargear.com to pay restitution to John and Jen.

The proposed default judgment does not say how much kleargear.com will be asked to pay. Rather, Michelman has asked for a future hearing where the judge would determine the penalty. A letter sent to kleargear.com by Michelman before the lawsuit was filed said John and Jen would ask a court to award $70,000.

So, for the want of $3,500 (via a BS clause hidden in the terms of sale and not even active when the suing couple purchased [but did not receive] an item from KlearGear), the company is now potentially out $70,000 (thanks to Public Citizen's efforts on the Palmers' behalf). That's if anyone can get ahold of the company's owners. So far, these principals have managed to avoid being smoked out by the internet heat.

But there's even more to this story. The original non-disparagement clause, which was pulled down shortly after KUTV's Matt Gephardt started asking questions, has now resurfaced. The gotcha clause has been placed back in its original spot in the "Terms of Sale and Use" (albeit under a slightly different url -- "termsofuse1," rather than "termsofuse").

Also making a return is KlearGear's horrible "chargeback" policy, which similarly disappeared briefly along with the non-disparagement clause.

[S]hould Klear Gear receive a chargeback (a sale reversal that occurs when a customer contacts his or her credit card-issuing bank or credit card company to request a refund for any part of a purchase that they or someone else made on their credit card) or other reversed charge from a third party (e.g., PayPal), credit card company or bank on your behalf before Klear Gear has been given a chance to resolve the issue as provided in this section, Klear Gear has the right to collect on the shipped products or rendered services and any fees associated with those disputes.

Klear Gear charges a $50.00 Dispute Fee per above-described Dispute should KlearGear.com not be given an opportunity to resolve any dispute as provided in this section, and the offending customer's personal information (with the exception of sensitive payment method details) will be provided to BadCustomer.com to limit the customer's ability to purchase from other retailers and service providers. The Dispute Fee is not refundable, even if Klear Gear wins your dispute or if you later cancel your dispute. By making a purchase through KlearGear.com you expressly authorize KlearGear.com to charge to the credit card you have provided to purchase the goods or services in dispute.

If Klear Gear is unable to charge the Chargeback against this credit card, Klear Gear shall have the right to otherwise collect the Dispute Fee from you. If Klear Gear is unable to collect the aforementioned Dispute Fee within 30 days of first attempting to charge you under this agreement, Klear Gear will forward your account to our external collections agency and assess an additional $500.00 Collection Fee. The original Dispute Fee and Collection Fee are subject to 2% monthly interest until the balance is paid in full including associated collection fees, legal fees, and costs of court as assessed separately by our collection firm. As a customer of KlearGear.com, you hereby expressly agree to these Terms.

Not only is this a lousy way to treat customers, it's an absolutely abhorrent way to "provide" customer service. Not only will KlearGear hit you with an immediate $50 charge, it will forward this charge to a collection agency within 30 days and tack $500 on top of it. As if the pocketbook hit weren't excessive enough, the company will also spitefully drag your name through the mud via Badcustomer.com should you have the gall to dispute a charge. The use of Badcustomer.com points to more disreputable actions on Kleargear's part. The whole clause has been reinstated, apparently blissfully (or evilly) unaware that the website was shuttered by the FTC in 2011, after being found guilty of participating in a "cyberbullying billing scam" that "siphoned $275 million" from credit card users' accounts over a period of 4 years. I guess if you're a bullying company, you partner with other, equally-bullying "colleagues."

Now, with its failing to show up in court and having reverted to its customer-punishing ways, KlearGear appears to be more than happy to take money from unwitting chumps and have every incentive not to take care of these blissfully ignorant customers. Why fulfill an order when you can collect anywhere from $50 to $3,500 for treating them poorly?

With its nonexistent staff, numerousaddresschanges and unwillingness to confront any of these issues, its bizarre, abusive "terms of sale" seem to indicate the owners (whoever they are) are willing to run this business into the ground and walk away from the wreckage. Trying to apply logic to its business practices leads one to speculate that it's actually not an ignorant man's ThinkGeek, but rather an elaborate front for something shadier, like money laundering.

KlearGear very likely isn't a front, but rather, a business run by combative people with lousy business acumen and even lousier customer service skills. It's one thing to take someone's money while burdening them with bogus (and supposedly binding) clickwrap Terms of Sale. It's quite another to actually fulfill your end of the bargain and provide them with their purchased items.

Until someone actually outs those responsible for this debacle d/b/a KlearGear, about all anyone can do is spread the word about its abhorrent policies and hope that no one they know is putting their money into clearly undeserving pockets.